Herbert Smith Freehills contributes to Transnational Dispute Management's (TDM) 10th Aniversary Issue

September saw the release of TDM Journal's special aniversary issue: Ten Years of TDM. The TDM Journal is a comprehensive and innovative journal comprising contributions from well-known arbitration practitioners on the management of international disputes with a focus on the rapidly evolving area of investment arbitration, as well as  other significant areas of international investment.  The 10th anniversary issue includes contributions from six Herbert Smith Freehills practitioners:

Looking to the Future: Three "Hot Topics" for Investment Treaty Arbitration in the Next Ten Years: Matthew Weiniger, Partner, and Mike McClure, Senior Associate.

"International" Arbitration in an Increasingly Regional World: Claudia Ludwig, Senior Associate, and Joanne Greenaway, Professional Support Lawyer.

Commentary on the US Solicitor General's Office (CVSG) brief in BG Group PLC v. Republic of Argentina (May 2013): Laurence Shore, Partner, and Amal Bouchenaki, Of Counsel.

These articles were first published in Transactional Dispute Management, Volume 10, Issue 4, September 2013 and are reproduced with the kind permission of Transactional Dispute Management (www.transnational-dispute-management.com).

Looking to the Future: Three "Hot Topics" for Investment Treaty Arbitration in the Next Ten Years: Matthew Weiniger, Partner, and Mike McClure, Senior Associate

This article considers three areas that have prompted debate in recent years that are likely to be "hot topics" for scholars and practitioners for the next ten years. These issues are: (i) mass claims; (ii) competence and judicial supervision (particularly post BG v Argentina); and (iii) precedent (with a focus on the MFN debate). A common theme for each "hot topic" is that they concern (to a certain extent at least) two of the fundamental issues for investment treaty practitioners, namely jurisdiction and consistency.

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"International" Arbitration in an Increasingly Regional World: Claudia Ludwig, Senior Associate, and Joanne Greenaway, Professional Support Lawyer

The article examines the recent proliferation of institutions worldwide, looking first at the global expansion of the international institutions and then at the growth of independent regional institutions, whilst recognising that there is no clear dichotomy between the two models.

Many of the major international institutions have recently expanded, or are seriously considering expansion, into new jurisdictions by setting up subsidiaries or entering into joint ventures/partnerships with regional centres. These global expansion plans seem to be driven, on one hand, by the international institutions themselves in order to address increased competition and, on the other hand, by new or existing regional institutions seeking to draw upon the experience and reputation of the international institutions and entering into partnership or similar arrangements with them.

The growth in independent regional institutions is arguably driven largely by convenience factors such as location, contacts with local lawyers, language and culture as well as familiarity of the institution with the local process, court system and legal framework. The trend to regionalism can also be seen as a response to the legitimacy problems which international arbitration suffers in some parts of the developing world. Parties from emerging jurisdictions often want to be able to influence the arbitration process with their own tailored rules which are sensitive to local issues and appoint local arbitrators who understand them. At the same time, many such jurisdictions are promoting arbitration as a safe dispute resolution mechanism in order to attract investments.

In parallel to the move to regionalism there has also been a move to specialisation as parties are increasingly interested in institutions that can deliver expertise in certain types of cases. This is evidenced by the continued growth of ICSID notwithstanding a recent backlash from certain South American states in particular.

The authors conclude that, while the growth of regionalism, in whichever form, is undeniable, this should not be seen as a threat to international arbitration. On the contrary, it should increase the trust users put in arbitration as a dispute resolution mechanism, help to resolve the credibility and legitimacy issues international arbitration faces and increase the efficiency and quality of the arbitral process. Nor should the growth of regionalism be seen as the only solution to the challenges international arbitration faces as a result of its increased global popularity. An increased sensitivity of arbitrators and those involved in the arbitration process is also crucial to take account of the background of the parties and the cultural context of the dispute from which it arises.

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Commentary on the US Solicitor General's Office (CVSG) brief in BG Group PLC v. Republic of Argentina (May 2013): Laurence Shore, Partner, and Amal Bouchenaki, Of Counsel.

The legal acumen of the United States Solicitor General ("SG") cannot be doubted. Invited by the United States Supreme Court to file a brief expressing the position of the United States on the Petition for a Writ of Certiorari in BG Group PLC v. Republic of Argentina, No. 12-138, the SG might have been expected to provide thoughtful support for the Petition.

The decision for which the Petition sought review, an opinion by Judge Rogers of the United States Court of Appeals for the District of Columbia Circuit, determined that it was for the U.S. District Court, and not for the investment treaty arbitral tribunal, to decide whether the investor-claimant had satisfied a precondition to arbitration. As a result, the D.C. Circuit made its own independent assessment of Article 8 of the Argentina-United Kingdom Bilateral Investment Treaty ("BIT"). In doing so, the D.C. Circuit set aside the BG Group v. Argentina final arbitral award rendered on December 24, 2007, and held that the Article 8 eighteen-month litigation requirement prior to commencing arbitration constituted a "temporal limitation" on Argentina's consent to arbitrate under the Treaty. Not only was this D.C. Circuit decision contrary to the wellreasoned opinions of the majority of other Circuit Courts, but it also revealed ignorance of, or at least lack of interest in, international law, the law applicable to the arbitral dispute.

Please click here to read the full article.